Standard Const. & Associates v. Kinsler

• Decision Date: 05 March 1981
• Docket Number: No. UU-195,UU-195
• Citation: 394 So.2d 1083
• Court: Florida District Court of Appeals
• Parties: STANDARD CONSTRUCTION & ASSOCIATES and Continental National American Insurance Group, Appellants, v. Henry B. KINSLER, Appellee.

Page 1083

394 So.2d 1083

STANDARD CONSTRUCTION & ASSOCIATES and Continental National American Insurance Group, Appellants, v. Henry B. KINSLER, Appellee.

No. UU-195.

District Court of Appeal of Florida, First District.

March 5, 1981.

Mark A. Olewinski, Orlando, for appellants.

Edward H. Hurt of Hurt & Parrish, Orlando, Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.

JOANOS, Judge.

In this worker's compensation appeal, the employer and its carrier contest the deputy commissioner's finding that the claimant was temporarily totally disabled ("TTD") for a period of three months following the date of claimant's work-related accident. We agree with the employer that the deputy erred, as a matter of law, in awarding TTD benefits.

While working as a mason's assistant on July 27, 1979, the claimant broke out in a severe rash on his hands, forehead and back which the parties stipulated was caused by exposure to cement mix. The claimant received treatment for the rash at the emergency room and returned to work a week after the initial outbreak. He worked for about a week before he was laid off for non-accident related reasons, but his rash worsened and required another visit to the emergency room. Thereafter, the claimant applied for one job at a construction site but was not hired. In November the claimant started work again doing odd jobs and "cleanup work."

Besides the two emergency room visits, the record does not reflect any other medical examination until October 17, 1979 when the claimant was seen by Dr. Kohen, an allergy specialist. The doctor testified that the claimant's rash was healed when he first saw the claimant. Although the claimant went to Dr. Kohen again on October 26, 1979, the record indicates that each of these visits was for the purpose of diagnosis, not treatment.

The deputy's award of TTD is erroneous in two respects. First, she awarded TTD through a period of time when the claimant was working. It is illogical to conclude that a claimant is totally disabled during a period of time when the evidence shows that the claimant could and did work. Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979); Westinghouse Electric Corp. v. Williams, 379 So.2d 1032 (Fla. 1st DCA 1980). As a second ground for reversal, the record indicates that the deputy found the claimant to be TTD even when he was not suffering the effects of the rash. TTD is defined as the healing period during which the claimant is by reason of...